01a03516
12-12-2002
Florence L. Durham, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Florence L. Durham v. Department of Defense
01A03516
December 12, 2002
.
Florence L. Durham,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 01A03516
Agency No. 99DCMW11002
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
ISSUE PRESENTED
The issue presented herein is whether complainant was discriminated
against on the bases of race (Black) and disability (diabetes, high
blood pressure, and liver problems) when she was denied a reasonable
accommodation, which ultimately led to her removal.
BACKGROUND
On August 14, 1995, complainant was hired by the agency as a part-time
Materials Handler/Store Worker, WG-4/4, at the agency's Fort Riley
Commissary, Fort Riley, Kansas facility. Complainant's position required
continuous walking, standing, bending, stooping, moving of arms in order
to fill shelves and counters, and frequent lifting or moving of heavy
boxes and crates weighing fifty pounds or more.
Sometime after complainant's hiring, and the record is unclear as to a
specific date, complainant began displaying problems in carrying out
some of her job duties. As a result, some of her duties were taken
away and she was placed in a light duty position at the identification
desk, which essentially required that she maintain the store shelves,
i.e., put up shelf tags and do some light stocking. Complainant was
also required to do some salvage work, which entailed marking down or
destroying damaged merchandise.
In August 1996, the agency requested medical documentation from
complainant's physician because complainant was not able to perform some
of the duties of her Materials Handler/Store Worker position.<1> The
agency also requested an opinion of how complainant's medical condition
affected her overall health and activities, and whether the duties of
her position were likely to be incapacitating.
Complainant's physician responded to the request in September 1996.
The physician's response indicated that complainant suffered from
type II diabetes mellitus, hypertension, and severe sarcoidosis of
the liver. The response further indicated that complainant's liver
problems caused generalized aches, joint pains, abdominal discomfort,
and an overall feeling of poor physical and mental health, and for those
reasons, complainant could not engage in physically demanding labors.
The response concluded by indicating that repetitive activities such
as pulling, pushing, twisting, kneeling, squatting, bending, or lifting
(more than 15 pounds) would increase her sense of poor health and almost
assuredly exacerbate her abdominal pain. In response to the agency's
inquiry regarding whether complainant's duties would be incapacitating,
the physician stated that �it [was] unlikely that [complainant would]
experience a sudden event at work that [would] render her incapacitated
in carrying out her assigned light duties (emphasis added). As a result
of the physician's response, the agency maintained complainant in her
light duty position.
On May 25, 1997, in response to an agency request for a medical update
concerning complainant's medical condition, the physician stated that
complainant continued to suffer from the aforementioned impairments plus
morbid obesity and depression. He further stated that her condition was
no better than it was in his first statement, and in some areas was worse.
He concluded by stating that complainant's light duty position was within
her medical restrictions, and that repetitive physical labor continued
to be quite burdensome. Again, complainant was allowed to remain in
her light duty position.
In December 1997, complainant's first line supervisor contacted
complainant via letter about her job status. In the letter, complainant
was informed that the duties of her light duty position were extremely
limited, and because there were no Store Worker duties that were not
physically demanding, she could be removed from the agency if management
could not identify a position for which she was physically and otherwise
qualified. The letter further informed complainant to advise the agency
of any accommodations which would enable her to perform the duties
of her position. Complainant failed to respond because, in her view,
her supervisor's request constituted harassment.
In October 1998, in response to another request for an update on
complainant's condition, complainant's physician again advised the agency
that complainant's medical condition and restrictions had not changed.
Almost three months later, in January 1999, complainant was issued a
Notice of Proposed Removal. The proposal outlined that complainant was
not able to perform the following essential duties of her Store Worker
position: (1) fill special orders accurately and in a timely manner;
(2) receive and stage incoming merchandise in order to promote efficient
breakdown, separation, and stocking; (3) break down, separate and stage
or warehouse merchandise in designated locations; (4) pull stock from
warehouse shelves for the preparation of special orders; and (5) perform
operator maintenance. Additionally, the proposal stated there were
no other positions at complainant's grade of WG-4 or lower that were
available into which complainant could be reassigned. Complainant was
given twenty-one days to respond to the notice. At the end of the
response period, complainant was terminated, effective February 27, 1999.
Consequently, complainant sought EEO counseling and subsequently
filed a formal complaint on June 22, 1999, in which she alleged she was
discriminated against as identified in the issue presented. The complaint
was accepted for investigation. At the conclusion of the investigation,
complainant was informed of her right to request a hearing before an
EEOC Administrative Judge or alternatively, to receive a final decision
by the agency. When complainant failed to respond within the time period
specified in 29 C.F.R. � 1614.108(f), the agency issued a final decision
in which it found no discrimination. Complainant appealed.
ANALYSIS AND FINDINGS
Race Discrimination
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see, Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether s/he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
Here, we find that the agency has stated legitimate, nondiscriminatory
reasons for its actions. Specifically, the agency stated that complainant
was not accorded a reasonable accommodation because no such accommodation
was available, and complainant was removed because she could not perform
the core duties of her position.
Because the agency has proffered a legitimate, nondiscriminatory reason
for the alleged discriminatory events, complainant now bears the burden
of establishing that the agency's stated reason is merely a pretext for
discrimination. Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996). Complainant can do this by showing
that the agency was motivated by a discriminatory reason. Id. (citing
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). In attempting to
meet her burden, complainant identified four White disabled employees (a
Meat Cutter, an Office Worker, a Produce Worker, and another employee) who
were accommodated and not removed. But the record shows that (1) the Meat
Cutter was accommodated in the form of taking extra breaks, which did not
interfere with her ability to perform the essential functions of her job;
(2) the Produce Worker took a downgrade for performance reasons unrelated
to any disability; and (3) the other employee had a two-week restriction
of lifting over 15 pounds, and thereafter returned to performing his full
range of job duties. The agency had no record of an Office Worker who
was or had been accommodated. For the foregoing reasons, we conclude
that complainant failed to prove that the agency's stated reasons were
pretext designed to mask discriminatory animus toward her race.
Disability Discrimination
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9.
The Commission also notes that an employee must show a nexus between
the disabling condition and the requested accommodation. See Wiggins
v. United States Postal Service, EEOC Appeal No. 01953715 (April 22,1997).
As a threshold matter in a case of disability discrimination under a
failure to accommodate theory, the complainant must demonstrate that
she is an "individual with a disability." We shall assume, arguendo,
that complainant established that she is an individual with a disability
covered by the Rehabilitation Act.
Complainant also must show that she is a "qualified" individual with a
disability within the meaning of 29 C.F.R. � 1630.2(m). The agency argues
that complainant is not a qualified individual with a disability because
she could not perform the core duties of her Materials Handler/Store
Worker position with or without a reasonable accommodation. Upon review
of evidentiary materials in the record, specifically the complainant's
position description and statements from her physician, we are satisfied
that complainant is not qualified to perform the essential functions of
a Material Handler/Store Worker.
However, the discussion of �qualified� does not end at complainant's
current position. The term �qualified individual with a disability,�
with respect to employment, is defined as a disabled person who, with or
without a reasonable accommodation, can perform the essential functions
of the position held or desired. 29 C.F.R. � 1630.2(m) (emphasis added).
Thus, the term "position" is not limited to the position held by the
employee, but also includes positions that the employee could have held
as a result of reassignment. So in determining whether an employee is
"qualified," an agency must look beyond the position which the employee
presently encumbers. Accordingly, the agency was required to consider
reassignment in this case. We note that because this case arose prior
to June 20, 2002, the Commission will apply 29 C.F.R. � 1614.203(g),
its prior regulation regarding reassignment.<2>
The complainant has an evidentiary burden in reassignment cases
to establish that it is more likely than not (preponderance of the
evidence) that there were vacancies during the relevant time period into
which complainant could have been reassigned. Clearly, complainant can
establish this by producing evidence of particular vacancies. However,
this is not the only way of meeting complainant's evidentiary burden.
In the alternative, complainant need only show that: (1) he or she was
qualified to perform a job or jobs which existed at the agency, and (2)
that there were trends or patterns of turnover in the relevant jobs so
as to make a vacancy likely during the time period.
In attempting to meet this burden, complainant argues that she could
have stayed permanently in her light duty position. But there were
no permanent light duty positions at the facility, and an agency is
not required by the Rehabilitation Act to create a new position in
order to accommodate a disabled employee in the form of reassignment.
EEOC's Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act (March 1, 1999).
There is some evidence in the file that there were vacant positions as a
cashier, cash clerk, or administrative staff. But the cashier position
involved lifting requirements that were outside of complainant's medical
restrictions, and complainant has not shown how she could meet these
requirements or perform the essential functions of this job with or
without a reasonable accommodation. Complainant did not possess the
requisite skill, experience, or education level required for the cash
clerk or administrative positions. Because complainant could not perform
the job for which she was hired and she has not shown a vacant position
for which she qualified existed, she has failed to demonstrate that the
agency violated the Rehabilitation Act.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the final agency
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 12, 2002
__________________
Date
1Complainant did not allege that the agency's medical inquiry was a
violation of the Rehabilitation Act. Consequently, that issue will
not be addressed in this decision.
2 The agency is advised that 29 C.F.R. � 1614.203(g), which governed
and limited the obligation of reassignment in the Federal sector, has
been superseded and no longer applies. 67 Fed. Reg. 35732 (5/21/02), to
be codified as 29 C.F.R. � 1614.203(b). The ADA standards apply to all
conduct on or after June 20, 2002, and emphasize, among other things, a
broader search for a vacancy. The ADA regulations regarding reassignment
can be found at 29 C.F.R. �� 1630.2(o) and 1630.9. Additional information
can be found in the Appendix to the ADA regulations and in the EEOC's
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act (March 1, 1999) at Questions 25-30.
These documents are available on the EEOC's website at www.eeoc.gov.